Month: April 2010

Pre-arrest silence may not be used against you.

Often times people do not apply the Miranda warning properly in their discussions. Some believe that Miranda warnings must be read before law enforcement may arrest you. This is not the case. Miranda only applies to in custody statements. If you are in custody and law enforcement questions you without first reading Miranda, your statement may then be thrown out. However, if there is enough other evidence to suspect you of the crime, the arrest will still stand.

There has often been the question, what happens if I remain silent, or do not answer an investigators letter or questions before I am arrested? May the prosecutor use that silence to imply my guilt? While the Defense bar was adamant that the Constitution protects a person’s Right to remain silent at any time, Prosecution often argued that since Miranda only applies to statements while in custody, you do not have the Right to remain silent before an arrest.

The Minnesota Court of Appeals just clarified that the Constitution does protect your right to remain silent at all times, not just when you are actually arrested. Both the Minnesota and United States’Constitution guarantees a criminal defendant the right to remain silent. US Const. Amend. V; Mn const. art. I sec. 7. Admitting evidence of defendant’s silence could deprive the defendant of a fair trial. State vs. Borg (Minn. Ct. App.), A09-0243, March 15, 2010.

It is possible that the silence may be used for impeachment purposes. However, the silence may not be used in the State’s case in chief. If you are accused of a crime, you will want a lawyer to walk you through when your statements, and or silence, may be used against you and when those same may not.

For a free consultation with an experienced lawyer that will aggressively represent you, contact:

Patrick Flanagan
763-786-5324
651-200-3484
email:patflanagan@patflanagandefense.com
www.patflanagandefense.com

763-786-5324
651-200-3484
patflanagan@patflanagandefense.com
www.patflanagandefense.com

Out of State Convictions

Out of state convictions are very important. Out of state convictions will be counted against you in both State court and Federal court. This includes such convictions as DWI, DUI, or BUI (boating under the influence). You must be aware of your out of state convictions and make sure your attorney is also aware of what are your convictions and what are not. Sometimes the State may attribute crimes to you that are not your convictions.

Recently, I had a client that with his previous lawyer, went to prison when he never should have. Thankfully, we were able to correct the error avoid him having to serve more prison time.

My client’s troubles all started with his previous attorney not reviewing and investigating the criminal history. In Minnesota a sentencing guideline grid is used. Along the left side of this grid are ranked offenses. Murder in the first degree is not included in this grid as that carries a life sentence without parole. The rankings start with the low level felonies such as the sale of a simulated controlled substance (level 1) all the way up to level XI (Murder 2nd degree). Along the top of the grid are your criminal history points, 0 – 6 or more. Depending upon the crime and your criminal history score, you may do local jail time if convicted, or prison time. Obviously, a lower criminal history score means less jail or prison time to serve.

My client had convictions from Cook County, Chicago, Illinois. The State of Minnesota relies upon information from other States to determine criminal history scores. This usually works well, as long as the counties and cities within the states maintain the same recording system. Unfortunately, that is not the case for Cook County and the State of Illinois. Cook County and the State of Illinois do not keep the same records, nor do these to governmental agencies record convictions the same way. The State of Illinois relies upon booking numbers for convictions. Cook County does not. Book numbers do not mean much in Cook County apparently. Cook County will book several people under the same booking number. If a group of people are arrested, they all get the same booking number in Cook County.

Well, one day my client was arrested for loitering with a group of people. Cook County gave them all the same booking number. One of the people in the group was then investigated and convicted of murder. The State of Illinois assigned everyone in the group a murder conviction because the State relied upon the booking number to determine who should receive the conviction. My client was assigned 2 criminal history points without even knowing it.

My client then moved to Minnesota. While in Minnesota he was arrested and convicted of a theft charge. This was a low level theft, a level two. In order to serve prison time, he would need to have a criminal history score of six. According to his records, he had a criminal history score of 7. That meant he should go to prison. He did go to prison and sat there for two years.

When I got involved with my client case, I went through his criminal history score with him. I came across the murder conviction in Illinois that said he served prison time for. My client insisted he never committed murder, was never convicted of murder and never spent time in an Illinois prison. As I investigate the matter, I found out what I described above. The next step was to clear up his criminal history score recorded in Minnesota. This is not an easy task. Once you agree to a criminal history score and do not challenge it, the score becomes the score. My client’s former attorney did not challenge the criminal history score, but simply accepted the number the government said was accurate.

In the end, we were able to make sure my client did not serve more prison time. Unfortunately, he had to sit for two years to correct the mistake.

It is important that you discuss all aspects of your case with your attorney and that your attorney listens to you and educates you on your case. If you are in need of a free consultation, call Patrick Flanagan.

763-786-5324

651-200-3484

email: patflanagan@patflanagandefense.com

www.patflanagandefense.com

763-786-5324
651-200-3484
patflanagan@patflanagandefense.com
www.patflanagandefense.com

Federal Sentencing

Sentencing in the Federal Courts is very different from State Court. In Federal Court, if convicted, you receive a level for your offense committed. That level may be a level 34 for instance. If you accept responsibility for your actions, the Court will often grant a two or three level decrease to a level 31. This may save you a significant amount of time in prison. However, there are also ways that you can increase your levels, for instance, lying to the Court.

There are other ways levels can increase or decrease. If your criminal history shows a State conviction for Illegal use of a motor vehicle, you may receive an increase in your levels because of a crime of violence. However, tampering with a motor vehicle is not considered a crime of violence. This will often depend upon how the State defined the crime you may have been convicted of in State Court. Sometimes, the District Court may consider an act a crime of violence when really the act should not be.

In United States v. Kobyashi Jones, No. 06-2901 (E.D. Mo) (Unpublished)

Mr. Jones pleaded guilty to being a felon in possession and was sentenced
to 180 months based on the armed career criminal statute. One of his
priors was for the Missouri offense of Tampering (operating a vehicle
without owner’s consent). Upon review by the 8th Circuit Court of Appeals, the Court held that Tampering with a motor vehicle under Missouri law does not constitute a crime of violence. The sentence was vacated and remanded for a new sentence without considering a the level increase for a crime of violence criminal history.

This is an example why you must retain a lawyer to assist you in your criminal matters. Your lawyer’s work does not end at the conviction. Sentencing is also an important part to have your attorney at. If you find yourself in need of a lawyer, call Patrick Flanagan for a free consultation.

763-785-5324

651-200-3484

email: Patflanagan@patflanagandefense.com

www.patflanagandefense.com

763-786-5324
651-200-3484
patflanagan@patflanagandefense.com
www.patflanagandefense.com

Innocent man executed

Recently an innocent man was executed in the State of Texas. Mr. Todd Willingham was executed after a jury found him guilty of arson that resulted in the deaths of his three children. The government’s expert testified that the fire was definitely arson. The Defense attorney accepted this conclusion, as did the jury. This case highlights why it is important to have a competent attorney review your case and consider all facets. For a free consultation from a competent attorney that will assist you in your legal situation, contact Patrick Flanagan at

763-786-5324
651-200-3484
Email: patflanagan@patflanagandefense.com
www.patflanagandefense.com

The article can be found at the Chicago Tribune’s website, or the following link: http://www.chicagotribune.com/news/chi-tc-nw-texas-execute-0824-082aug25,0,5812073.story

Cameron Todd Willingham case: Expert says fire for which father was executed was not arson
August 25, 2009|By Steve Mills, Tribune Newspapers

In a withering critique, a nationally known fire scientist has told a state commission on forensics that Texas fire investigators had no basis to rule a deadly house fire was an arson — a finding that led to the murder conviction and execution of Cameron Todd Willingham.

The finding comes in the first state-sanctioned review of an execution in Texas, home to the country’s busiest death chamber. If the commission reaches the same conclusion, it could lead to the first-ever declaration by an official state body that an inmate was wrongly executed.

Indeed, the report concludes there was no evidence to determine that the December 1991 fire was even set, and it leaves open the possibility the blaze that killed three children was an accident and there was no crime at all — the same findings found in a Chicago Tribune investigation of the case published in December 2004.
Ads by Google
Advertisement

Willingham, the father of those children, was executed in February 2004. He protested his innocence to the end.

The Tribune obtained a copy of the review by Craig Beyler, of Hughes Associates Inc., which was conducted for the Texas Forensic Science Commission, created to investigate allegations of forensic error and misconduct. The re-examination of the Willingham case comes as many forensic disciplines face scrutiny for playing a role in wrongful convictions that have been exposed by DNA and other scientific advances.

Among Beyler’s key findings: that investigators failed to examine all of the electrical outlets and appliances in the Willinghams’ house in the small Texas town of Corsicana, did not consider other potential causes for the fire, came to conclusions that contradicted witnesses at the scene, and wrongly concluded Willingham’s injuries could not have been caused as he said they were.

The state fire marshal on the case, Beyler concluded in his report, had “limited understanding” of fire science. The fire marshal “seems to be wholly without any realistic understanding of fires and how fire injuries are created,” he wrote.

The marshal’s findings, he added, “are nothing more than a collection of personal beliefs that have nothing to do with science-based fire investigation.”

Over the past five years, the Willingham case has been reviewed by nine of the nation’s top fire scientists — first for the Tribune, then for the Innocence Project, and now for the commission. All concluded that the original investigators relied on outdated theories and folklore to justify the determination of arson.

The only other evidence of significance against Willingham was another inmate who testified that Willingham had confessed to him. Jailhouse snitches are viewed with skepticism in the justice system, so much so that some jurisdictions have restrictions against their use.

Samuel Bassett, an attorney who is the chairman of the commission, said the panel will seek a response from the state fire marshal and then write its own report.

Contacted Monday, one of Willingham’s cousins said she was pleased with the report but was skeptical that state officials would acknowledge Willingham’s innocence.

“They are definitely going to have to respond to it,” said Pat Cox. “But it’s difficult for me to believe that the State of Texas or the governor will take responsibility and admit they did in fact wrongfully execute Todd. They’ll dance around it.”

763-786-5324
651-200-3484
patflanagan@patflanagandefense.com
www.patflanagandefense.com

Search Warrants have many requirements

Just because law enforcement obtains a search warrant does not mean the search is legal, or that the evidence found from the search will be allowed in as evidence.

The validity of a search is governed by the Fourth Amendment to the United States Constitution and Article I, Section 10 of the Minnesota Constitution. The Fourth Amendment protects people and areas against unreasonable searches and seizures by the government. In the absence of a search warrant, a search is per se unreasonable unless the search comes within a defined exception.

In order for a search warrant to be upheld in court the information presented must be adequate, contain no misrepresentations and be properly executed. In order to be adequate, the warrant must be issued by a neutral, disinterested magistrate; demonstrate probable cause to believe there is a basis for the search or that the articles sought are located at the place to be searched and the things to be seized must be described as well as the places to be searched.

Statutes and case law help to define the terms such as: probable cause, adequacy, unreasonable or reasonable, seizures, and proper execution. A lawyer can help you to properly research and argue these points to the Court. If you find yourself in a situation where you need legal assistance, contact Patrick Flanagan for a free consultation.

763-786-5324

651-200-3484

Email: patflanagan@patflanagandefense.com

www.patflanagandefense.com

763-786-5324
651-200-3484
patflanagan@patflanagandefense.com
www.patflanagandefense.com